Artificial intelligence (AI) poses some interesting conundrums, challenges and hurdles when it comes to intellectual property (IP). Indeed, the landscape within which IP law operates barely resembles the landscape it was founded on. Is the IP system now fit for purpose or do we need to rethink things?
The foundations of IP were laid a very long time ago. The laws were designed to protect individual, physical, property inventions. This is as true of the chemical make-up of pharmaceuticals as it is of a piece of machinery. The historical landscape of course changed, and we saw the invention and proliferation of computers, and with them, software.
This introduced the first of the significant hurdles for IP as it was. This was scaled with the introduction of the 1977 European Patent Convention, the basis of which prohibits patenting software. But it wasn’t quite so simple. Left, right and centre you’ll be aware that software is patented. This is all thanks to some unplugged gaps in the law due to the ‘technical effect’ of software. Those unplugged gaps were once small issues, but are they now, with the advent of AI, becoming real headaches?
Well, we need to step back again, in to more recent history to understand. IP as a protector of physical inventions has already hit a snag. As computing advanced we saw the rise of the internet and with it a completely new type of IP challenge. It’s against this backdrop that AI needs to be considered.
So How Will AI Affect IP?
There are still a bunch of unknowns. This is further exacerbated because machine learning and the rate of AI development is immense. The European Patent Office is trying to prevent a stumble on the scale of the 1970s but realistically, that’s a tall order. Apply current law here and it will be operating against its actual original intent.
However, what we do know is that there is real danger to how level the playing field is. Britain, certainly, has always supported the “lone developer with a great idea”. These are the individuals who fuel the small businesses which are the hotbed of innovation. What we’re seeing is larger businesses, with the finances and resources, simply buying up patents, prospectively. These ‘protective patents’ are holding the small businesses back from breaking in to the AI scene.
The Purpose of IP
To understand the impact, we need to consider the actual purpose of IP. Fundamentally, IP is all about rewarding and protecting ‘something’ – whether that’s research, intelligence, ideas or something else. It’s about stopping someone else getting in on your great act. Capitalism is built on it as a concept.
The problem is that, with AI, replication of that ‘something’ no longer takes the effort, brawn, or mental agility that it once did – even in the 1970’s software days. Open source software, the internet, and coding developments full-stop mean the innovation required simply isn’t the same any more. This ‘common knowledge’ situation in many ways makes a mockery of patents. Not to mention how difficult they’d be to enforce.
Yet, acquire them we do! There are many reasons for this, not least because investors like them. Realistically though, is the situation fit for what we need of it? Are we really in the business of patenting commonly held and easily obtained information?
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